Attorneys for man convicted of raping, killing 8-year-old Cherish Perrywinkle argue for new trial

The man convicted and sentenced to death in 2018 for the rape and murder of 8-year-old Cherish Perrywinkle will be back in court Monday as his attorneys argue for him to get a new trial.

Donald Smith was convicted of abducting Perrywinkle in 2013 from a Northside Walmart where he had lured her family with promises of buying Perrywinkle and her sisters clothes. Perrywinkle’s mother called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.

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In a 78-page appeal, Smith’s attorneys argue that many errors were made in his trial that led to the penalty phase where he was sentenced to death. They say that his original conviction isn’t valid because his former lawyers failed to remove a biased juror and failed to object to a 911 call and “digitally altered photographs.”

In May, the State Attorney’s Office filed a response to the motion for a new trial, arguing it should be “summarily denied.”

The state argues that even if those errors were made, the evidence was overwhelming that Smith murdered Perrywinkle, and it would not have impacted the outcome of his getting the death penalty.

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The judge was asked by prosecutors and a Florida assistant attorney general in October to review a letter between Smith and his penalty phase attorney. Smith’s defense is asserting attorney-client privilege regarding the letter, and the judge was asked to see if anything in the letter applies to any of the claims being made in the appeal.

During the evidentiary hearing on Monday and Tuesday, Smith’s attorney will call witnesses to the stand and present physical evidence to the judge in hopes of getting Smith a new trial.

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